Filed 9/3/26 P. v. Bailey CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B342374
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA499793-02)
v.
ADRIAN BRYAN BAILEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Shelly Torrealba, Judge. Affirmed as
modified and remanded with directions.
Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Adrian Bryan Bailey appeals from his judgment of
conviction of first degree murder (Pen. Code, § 187, subd. (a))1
with a true finding on a personal use firearm enhancement
(§ 12022.5). On appeal, Bailey argues: (1) the trial court erred in
refusing to instruct the jury on provocation with CALCRIM
Nos. 522 and 570; (2) the verdict form includes an unproven
firearm-enhancement allegation under section 12022.5,
subdivision (d); and (3) certain postverdict minute orders and the
abstract of judgment contain errors that require correction.
We conclude the trial court properly refused Bailey’s request for
jury instructions regarding provocation because there was no
substantial evidence of legally sufficient provocation in this case.
We further conclude the reference to section 12022.5,
subdivision (d) must be stricken from the verdict on the murder
count because that allegation was not proven. In addition, we
conclude the relevant minute orders and the abstract of judgment
must be amended to correct certain errors. We accordingly
modify the judgment of conviction to strike the reference to
section 12022.5, subdivision (d) from the verdict on count 1,
affirm the judgment as modified, and remand the matter to the
trial court to make the corrections to its minute orders and
abstract of judgment consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
1. Charges
In an information, Bailey was charged with the murder of
Eric Rand-Willis (§ 187, subd. (a); count 1), the attempted willful,
1 Unless otherwise stated, all further undesignated statutory
references are to the Penal Code.
2
deliberate, and premeditated murder of Angel Thompson (§§ 664,
187, subd. (a); count 2), and possession of a firearm by a felon
(§ 29800, subd. (a)(l); count 3). As to counts 1 and 2, it was
alleged that Bailey personally used a firearm within the meaning
of section 12022.5, subdivisions (a) and (d). As to count 2, it also
was alleged that Bailey personally inflicted great bodily injury on
the victim within the meaning of section 12022.7, subdivision (a).
2. Evidence at trial
On May 5, 2021, Eric Rand-Willis and his fiancé, Angel
Thompson, were in front of their house on South Manhattan
Place in Los Angeles County. The house was located in an area
claimed by the Rollin’ 90s gang, a rival of the Eight Trey
Gangster Crips. Surveillance cameras in the area captured three
vehicles—a blue SUV, a white sedan, and a gold sedan—drive
along South Manhattan Place, turn onto a nearby street, and
come to a stop. While the driver stayed inside the blue SUV,
Bailey and another man exited the vehicle and began walking
toward the victims’ house.
As they approached the house, Bailey and his companion
removed guns from their pockets. Bailey had a silver-colored
handgun, and his companion had a dark-colored handgun. When
Bailey pulled out his gun, a lighter and a set of headphones fell
from his pocket to the ground. With both arms extended at
shoulder level, Bailey fired multiple rounds in the direction of
Rand-Willis and Thompson. After Bailey stopped shooting, his
companion began firing his gun in the same direction. Bailey and
his companion then ran back to the blue SUV, and all three
vehicles drove away.
Rand-Willis suffered a fatal gunshot wound. The bullet
entered his back and exited through his chest. Thompson also
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suffered a gunshot wound to her back and was severely injured,
but survived.
During the police investigation, six .40-caliber casings and
four nine-millimeter casings were recovered from the scene of the
shooting. The .40-caliber casings were matched to a silver
handgun that was later seized from Autum Vidal. Following his
arrest, Vidal told a jailhouse informant that he was an Eight
Trey gang member and acted as the driver in the shooting.
The police also recovered a lighter and headphones from the
scene of the shooting. Bailey’s DNA was found on the
headphones.
On October 14, 2021, the investigating detectives in the
case recorded an interview of Bailey. During the interview,
Bailey initially denied any involvement in the shooting. After
describing the evidence against Bailey, the detectives asked him
to explain how the shooting occurred. In response, Bailey stated,
“Same person shot at me before. Still got the bullet wound in my
leg.” Bailey showed the detectives his leg wound and stated that
he was shot during a “little altercation” a week before the
shooting in this case. He claimed that he did not remember what
the altercation was about. Bailey also denied knowing who the
shooter was or where he was from, but noted, “All I know is when
he shot me, … that wasn’t gonna be the end of it.” When asked if
he reported the shooting to the police, Bailey answered, “I didn’t
call no police. I didn’t go to no hospital. Just—I went back home,
took it out, patched it up and it is what it is. Called it a day.”
Bailey later added, “Why am I gonna report it to the police? …
I don’t … [¶] … [¶] … want that type of justice. [¶] … [¶] I rather
have … [¶] … [¶] … it myself.”
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The detectives asked Bailey what his plan was on the day
of the shooting in this case. Bailey replied, “There really wasn’t
no plan. I was just—I just had my get back. I—I wanted
revenge.” He also told the detectives that he was “[g]oing to get
my revenge,” and that “I got shot, so I’m going to go shoot back.”
Bailey denied that the individuals who accompanied him that day
were aware of his plan, stating, “[T]hey know that I got shot, but
they didn’t know exactly what I was planning to do. Like I said,
my plan was my plan.” He claimed that he only told the “person
that was driving the car, take me over there. I got some business
to handle.” Bailey further stated that he had been told by others
that the man who shot him “hangs around in the 9-0s,” and that
he recognized the man as the shooter because he “remember[s]
faces.” Bailey admitted that he was armed with a .40-caliber gun
when he went to confront the man, and that he fired his gun at
him until “the clip was empty.”
The detectives noted that Bailey’s “mission was to take this
dude out,” and that he “succeeded.” In response, Bailey stated,
“Take him out before he tried to take me out. … [¶] … [¶] He
already tried to execute me.” When told that the man was
unarmed at the time that Bailey shot him, Bailey replied, “But he
shot me. That’s—that’s all that matters.” Bailey also stated,
“[I]t’s not what I wanted to do. It’s what I had to do. … [¶] … [¶]
’Cause … it was every day that I was looking over my back
worrying about having to get shot again. So why worry about
that when I … [¶] … [¶] … just go do what I got to do.”
During a recorded conversation with a paid jailhouse
informant, Bailey admitted that he was an Eight Trey gang
member. He also stated, “I told on my damn self. … They caught
me red-handed.” Bailey later told the informant, “Cuz shot me. I
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went to go get revenge. Straight up. I told the [police], like,
somebody tried to take your life, what would you do?”
3. Jury verdict and sentencing
At the conclusion of the trial, the jury found Bailey guilty of
the first degree murder of Rand-Willis (count 1) and possession of
a firearm by a felon (count 3). As to count 1, the jury also found
true the allegation that Bailey personally used a firearm within
the meaning of section 12022.5, subdivisions (a) and (d). The jury
found Bailey not guilty of the attempted murder of Thompson
(count 2). Following the jury verdict, the trial court granted the
People’s motion to dismiss all aggravating factor allegations.
The trial court sentenced Bailey to an aggregate term of
29 years to life in state prison, consisting of 25 years to life on
count 1, a consecutive term of four years on the firearm
enhancement under section 12022.5, subdivision (a), and a
concurrent term of two years on count 3.
Bailey filed a timely appeal.
DISCUSSION
1. Failure to instruct the jury on provocation
Bailey argues the trial court erred in denying his request to
instruct the jury on provocation with CALCRIM Nos. 522 and
570. Bailey asserts there was substantial evidence of provocation
in this case because a reasonable juror could have found that he
killed Rand-Willis in a heat of passion due to provocation, which
would have reduced his culpability to second degree murder or
voluntary manslaughter. We conclude the trial court did not err
in refusing to give the requested instructions because there was
no substantial evidence of legally sufficient provocation.
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1.1. Relevant background
As to count 1 charging Bailey with the murder of Rand-
Willis, the trial court instructed the jury with CALCRIM
Nos. 500 (homicide), 520 (first or second degree murder with
malice aforethought), and 521 (first degree murder). Defense
counsel asked the trial court to also instruct the jury on the effect
of provocation on the degree of murder with CALCRIM No. 522,
and on voluntary manslaughter based on heat of passion with
CALCRIM No. 570.
In denying the request, the trial court explained that
“revenge is not the kind of evidence that warrants an instruction
on provocation.” The court noted that, in addition to a lapse in
time and a difference in location between the alleged shooting of
Bailey and the killing of Rand-Willis, “there was a lot of effort …
and thought process by Mr. Bailey to locate the victim, and in his
own words, get revenge.” The court later added, “If there were
any facts to support it, … I would give this instruction, but it’s
not there. And providing the instruction would only confuse the
jury.”
In response to the trial court’s ruling, defense counsel
asked if the court was “saying that getting shot in the leg is not
provocation.” The court replied, “Not under these circumstances.
Not in an extended period of time where the incident occurred a
week later, two unarmed people standing in their yard … that
are shot at after three [cars] pull up, circle, two people get out,
walk down the street, get to the location, turn, look, put two
hands on the gun and point it directly at the victim, take multiple
shots and then run back into a car and leave. [¶] There was zero
provocation by the individual on that date. And a week later,
with the defendant’s own statements saying that he was not
7
going to be spending the rest of his life looking over his shoulder
and that this was for revenge. No, there’s no provocation.”
Defense counsel also asked if the court’s ruling precluded
him from arguing provocation to the jury. In response, the court
stated, “No, I’m not going to give the instruction because I don’t
believe the facts warrant it. But it doesn’t preclude you from
making your argument and the jury giving it at least a
consideration. They have the choice to make between first and
second degree. And they can make that decision based on the
facts as they find them.”
At the conclusion of the trial, the jury found Bailey guilty of
first degree premeditated murder.
1.2. Governing law
“ ‘ “[I]t is the [trial] ‘court’s duty to instruct the jury not
only on the crime with which the defendant is charged, but also
on any lesser offense that is both included in the offense charged
and shown by the evidence to have been committed.’ ” ’ ” (People v.
Westerfield (2019) 6 Cal.5th 632, 718.) “ ‘ “Conversely, even on
request, the [trial] court ‘has no duty to instruct on any lesser
offense unless there is substantial evidence to support such
instruction.’ ” ’ ” (People v. Souza (2012) 54 Cal.4th 90, 116
(Souza).) “The ‘substantial evidence requirement is not satisfied
by “ ‘any evidence … no matter how weak,’ ” but rather by
evidence from which a jury … could conclude “that the lesser
offense, but not the greater, was committed.” ’ ” (People v. Nelson
(2016) 1 Cal.5th 513, 538 (Nelson).) “ ‘On appeal, we review
independently the question whether the trial court improperly
failed to instruct on a lesser included offense.’ ” (Ibid.)
“Criminal homicide is divided into two types: murder and
manslaughter.” (People v. Beltran (2013) 56 Cal.4th 935, 941
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(Beltran).) Murder is the “unlawful killing of a human being …
with malice aforethought.” (§ 187, subd. (a).) Malice may be
express or implied, and is express “when there is manifested a
deliberate intention to unlawfully take away the life of a fellow
creature.” (§ 188, subd. (a)(1).) “A killing with express malice
formed willfully, deliberately, and with premeditation constitutes
first degree murder.” (Beltran, at p. 942.) “ ‘Second degree
murder is the unlawful killing of a human being with malice
aforethought but without the additional elements, such as
willfulness, premeditation, and deliberation, that would support
a conviction of first degree murder.’ ” (Ibid.) “Provocation may
preclude a defendant from subjectively premeditating and
deliberating and, as a result, may reduce a murder from first
degree to second degree.” (People v. Nunez (2023) 97 Cal.App.5th
362, 368; see People v. Thomas (2023) 14 Cal.5th 327, 384.)
Voluntary manslaughter is “the unlawful killing of a
human being without malice … [¶] … upon a sudden quarrel or
heat of passion.” (§ 192, subd. (a).) “Heat of passion arises if,
‘ “at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would
cause the ordinarily reasonable person of average disposition to
act rashly and without deliberation and reflection, and from such
passion rather than from judgment.” ’ ” (Beltran, supra,
56 Cal.4th at p. 942.) “ ‘ “[T]he factor which distinguishes the
‘heat of passion’ form of voluntary manslaughter from murder is
provocation.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1225
(Rangel).) “ ‘To be adequate, the provocation must be one that
would cause an emotion so intense that an ordinary person would
simply react, without reflection. … [T]he anger or other passion
must be so strong that the defendant’s reaction bypassed his
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thought process to such an extent that judgment could not and
did not intervene.’ ” (Ibid.) “ ‘ “ ‘[I]f sufficient time has elapsed
for the passions of an ordinarily reasonable person to cool, the
killing is murder, not manslaughter.’ ” ’ ” (Ibid.) “Moreover, the
defendant must ‘actually be motivated by passion in committing
the killing’; that is, he or she must be acting ‘ “ ‘under the smart
of that sudden quarrel or heat of passion.’ ” ’ [Citation.]
Accordingly, it is not sufficient that a person ‘is provoked and
[then] later kills.’ ” (Nelson, supra, 1 Cal.5th at p. 539.)
1.3. The trial court did not err in denying Bailey’s
request to instruct the jury on provocation
Bailey contends the trial court should have instructed the
jury on provocation with CALCRIM Nos. 522 and 570 because his
recorded statements to the investigating detectives and jailhouse
informant constituted substantial evidence of provocation. Bailey
specifically claims that his “statements that he was in fear for his
life—one week after having been shot—add up to substantial
evidence that [he] killed Rand-Willis [in] the heat of passion due
to provocation.” We disagree.
It is well established that “a desire for revenge cannot
objectively satisfy the provocation requirement.” (Souza, supra,
54 Cal.4th at p. 117.) However, in his recorded statements,
Bailey made clear that the reason he shot Rand-Willis was
because he was seeking revenge. Bailey told the investigating
detectives that, after Rand-Willis shot him in the leg, he did not
report the incident to the police because “I don’t … [¶] … [¶] …
want that type of justice. [¶] … [¶] I rather have … [¶] … [¶] … it
myself.” Bailey also stated that, on the day he killed Rand-Willis,
he “wanted revenge,” he was “[g]oing to get [his] revenge,” and he
“got shot, so I’m going to go shoot back.” Bailey provided a
10
similar explanation for the killing in his conversation with the
jailhouse informant, claiming, “Cuz shot me. I went to go get
revenge. Straight up.” In his interview with the detectives,
Bailey did express that he wanted to “take [Rand-Willis] out
before he tried to take me out,” and that “it was every day that I
was looking over my back worrying about having to get shot
again.” However, the fact that Bailey worried about being shot
again in the future is not substantial evidence that he acted
rashly and without deliberation and reflection when he set out
with his companions to find and shoot Rand-Willis. Instead,
Bailey’s own statements showed that he made a conscious
decision to kill Rand-Willis to eliminate any future threat,
explaining, “[W]hy worry about that when I … [¶] … [¶] … just go
do what I got to do.”
Moreover, the circumstances surrounding the shooting in
this case reflected planning and deliberation rather than a rash
act. As described by Bailey, the shooting of Rand-Willis took
place one week after Rand-Willis shot Bailey in the leg during an
altercation. This was sufficient time for “ ‘ “ ‘passion to subside
and reason to return.’ ” ’ ” (Rangel, supra, 62 Cal.4th at p. 1225
[no substantial evidence of provocation where two weeks had
elapsed between shooting of defendant’s son and defendant’s
killing of alleged shooters]; Souza, supra, 54 Cal.4th at p. 115 [no
substantial evidence of provocation where defendants, upon
learning their mother was assaulted earlier that night, drove
around looking for alleged assailant’s home and then killed
assailant after locating and entering home].) Further, on the day
of the fatal shooting, Bailey did not run into Rand-Willis by
chance. Rather, after learning that Rand-Willis lived in the
neighborhood claimed by the rival Rollin’ 90s gang, Bailey
11
directed one of his companions to drive him to that location
because he had “some business to handle.” In addition,
surveillance video showed that the blue SUV that took Bailey to
Rand-Willis’s residence was part of a caravan of three cars that
drove through the area and parked on a nearby street. After
Bailey and another one of his companions exited the SUV, they
each walked toward Rand-Willis’s house, pulled out guns from
their pockets, and then fired their weapons repeatedly at the
unarmed victims. Baily and his companion then ran back to the
SUV, and all three cars left the area together. The totality of
these circumstances thus “ ‘reveal[ed] a concerted effort to plan
and execute a surprise attack,’ not rash action.” (Rangel, at
p. 1225.) Because the record does not contain substantial
evidence of legally sufficient provocation, the trial court did not
err in refusing to instruct the jury with CALCRIM Nos. 522 and
570.
2. Firearm enhancement under section 12022.5,
subdivision (d)
Bailey contends the jury’s true finding on the firearm
enhancement allegation under section 12022.5, subdivision (d)
must be stricken and the matter remanded for resentencing
because that allegation was never proven at trial. The People
concede that the reference to section 12022.5, subdivision (d)
should be stricken from the verdict form because it was the result
of a clerical error, but assert that a remand for resentencing is
unwarranted in this case. We agree with the People.
“ ‘ “ ‘A verdict is to be given a reasonable intendment and be
construed in light of the issues submitted to the jury and the
instructions of the court.’ ” ’ ” (People v. Jones (2014)
230 Cal.App.4th 373, 378–379.) “[T]echnical defects in a verdict
12
may be disregarded if the jury’s intent to convict of a specified
offense within the charges is unmistakably clear, and the
accused’s substantial rights suffered no prejudice.” (People v.
Webster (1991) 54 Cal.3d 411, 447.) “Where the error is in the
recording of the judgment, as opposed to in the rendering of the
judgment, it is clerical error which may be disregarded or
corrected.” (People v. Camacho (2009) 171 Cal.App.4th 1269,
1273, citing People v. Trotter (1992) 7 Cal.App.4th 363, 370.)
Section 12022.5 imposes a sentence enhancement for the
personal use of a firearm in the commission or attempted
commission of any felony. Subdivision (a) of the statute provides,
in relevant part, that “any person who personally uses a firearm
in the commission of a felony … shall be punished by an
additional and consecutive term of imprisonment in the state
prison for 3, 4, or 10 years, unless use of a firearm is an element
of that offense.” (Id., subd. (a).) Subdivision (d) of the statute
states that, “[n]otwithstanding the limitation in subdivision (a)
relating to being an element of the offense, the additional term
provided by this section shall be imposed for any violation of
Section 245 if a firearm is used, or for murder if the killing is
perpetrated by means of shooting a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict great bodily injury or death.” (Id., subd. (d).)
Here, the charging information alleged firearm
enhancements under section 12022.5, subdivisions (a) and (d).
At trial, however, the court did not instruct the jury on any
enhancement alleged under subdivision (d) of the statute.
Although the standard instruction given by the court cited “Pen.
Code § 12022.5(a)/(d)” in its title, the body of the instruction only
described the elements of an enhancement under section 12022.5,
13
subdivision (a). Additionally, the prosecution’s closing argument
to the jury on the firearm enhancement solely addressed the
allegation under subdivision (a) of the statute, and made no
reference to subdivision (d). Nevertheless, in the verdict form for
count 1, the murder charge, the jury was asked whether, in the
commission of that offense, Bailey “personally used a firearm, a
handgun, within the meaning of Penal Code Section 12022.5(a)
and (d).” The jury found that allegation to be true.
At sentencing, the trial court stated: “I don’t have any
wiggle room as to count one, the sentence is 25 years to life. The
only consideration and discretion this court has is as to the
enhancement, the firearm enhancement, which is Penal Code
section 12022.5 (A) and the count [for] possession of a firearm by
a felon as to the sentencing on that. [¶] … I am prepared and will
impose an aggregate sentence of 29 years to life calculated as
follows: [¶] Twenty-five years to life on count one. [The] [c]ourt
would select and use its discretion, taking into consideration the
youthfulness of Mr. Bailey at the time of committing this offense
and his childhood endeavors as presented to the court … In
accord with Penal Code section 1385, I’m using my discretion and
impose the midterm of four years consecutive.” The abstract of
judgment reflects a firearm enhancement of four years pursuant
to “PC12022.5(A).”
Based on the totality of this record, it is clear that the jury
intended to find that, as to count 1, Bailey personally used a
firearm in the commission of the offense within the meaning of
section 12022.5, subdivision (a). Because an enhancement
allegation under section 12022.5, subdivision (d) was never
proven to the jury, it was error to include a specific reference to
subdivision (d) of the statute in the verdict form given to the jury.
14
As a result, the verdict for count 1 must be corrected to strike the
erroneous reference to section 12022.5, subdivision (d).
Contrary to Bailey’s claim, however, a remand for
resentencing is not warranted. The trial court made clear at
sentencing that it was imposing a four-year term on the firearm
enhancement solely under section 12022.5, subdivision (a).
The court never referred to section 12022.5, subdivision (d) in
sentencing Bailey, and there is nothing in the record to suggest
that the court relied on subdivision (d) of the statute in selecting
the middle term of four years. There is also no indication in the
record that the court misunderstood the scope of its discretion
under section 1385. Under these circumstances, Bailey is not
entitled to resentencing on the firearm enhancement allegation
found true by the jury under section 12022.5, subdivision (a).
3. Advisement under In re Tellez
At sentencing, the trial court gave Bailey a purported
advisement pursuant to In re Tellez (2024) 17 Cal.5th 77 (Tellez).
In Tellez, the Supreme Court held that trial courts are required
to advise criminal defendants of the potential consequences of a
guilty or no contest plea under the Sexually Violent Predator Act
(SVPA) (Welf. & Inst. Code, § 6600 et seq.). (Tellez, at pp. 83–84.)
On appeal, Bailey argues, and the People agree, that the Tellez
advisement given by the trial court was unauthorized because
this case did not involve a plea. Thus, the reference to the Tellez
advisement in the trial court’s October 10, 2024 sentencing
minute order must be stricken.
4. Dismissal of aggravating factor allegations
The charging information alleged various factors in
aggravation. On April 19, 2024, after the jury returned its
verdicts, the trial court granted the prosecution’s motion to
15
dismiss the aggravating factors. However, as Bailey asserts on
appeal, the trial court’s minute order for that date does not
reflect such dismissal. Accordingly, the April 19, 2024 minute
order must be amended to reflect that the trial court dismissed
each of the aggravating factor allegations on the People’s motion.
5. Corrections to abstract of judgment
Bailey contends, and the People concede, that the abstract
of judgment contains two errors that require correction.
First, the “Other Orders” page attached to the abstract of
judgment lists the trial court’s order that Bailey pay $12,055 in
restitution to the Victim Compensation Board twice. The
abstract of judgment must be modified to delete one of the
duplicative restitution orders.
Second, while the determinate abstract of judgment form
(Form CR-290) accurately reflects a concurrent term on count 3
for possession of a firearm by a felon, section 6 of that form lists
the “TOTAL TIME ON ATTACHED PAGES” as 29 years and
0 months. Because section 7 of Form CR-290 already captures
the fact that there is an “[a]dditional indeterminate term,”
section 6 should have been left blank. (See People v. Wright
(2025) 113 Cal.App.5th 832, 848 [where remainder of sentence is
indeterminate, “in section six, the determinate form CR-290 must
show no time”].) The abstract of judgment must be modified to
show no time on section 6 of Form CR-290.
DISPOSITION
The judgment of conviction is modified to strike the
erroneous reference to section 12022.5, subdivision (d) from the
verdict on count 1. As modified, the judgment of conviction is
affirmed. The matter is remanded to the trial court with
directions to (1) strike the reference to the Tellez advisement in
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the October 10, 2024 minute order; (2) amend the April 19, 2024
minute order to reflect the dismissal of the aggravating factor
allegations on the People’s motion; and (3) amend the abstract of
judgment to delete one of the duplicative restitution orders from
the “Other Orders” page and to show no time on section 6 of Form
CR-290. The trial court is further directed to forward a certified
copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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